Chapter 19 - The
International Legal Environment

At the
Shanghai meeting, the Americans had proposed a future conference to draft an
international drug control treaty that would include the Shanghai resolutions
in an expanded and more stringent form. This proposal was contested by the
other countries and went nowhere. In the years that followed, however, the U.S.
lobbied continually and forcefully around the world for a new conference.
Addressing the opium problem directly, publicly and internationally was a way
for the U.S. to achieve its domestic control objectives, to put an end to the
profitable drug trade dominated by the colonial powers, and to curry favour with
the Chinese and thereby improve Sino-American economic relations.[1][16]

Twelve
countries agreed to meet at The Hague on 1 December 1911 to draft a treaty.[2][17] Once again, the meeting was chaired
by Brent, and Wright led the U.S. delegation. Most states had demanded
amendments to the U.S. draft agenda, which focused on stringent control of
opium production, manufacture and distribution in Asia. For example, Britain
insisted that manufactured drugs such as morphine, heroin, and cocaine be
considered. This was an attempt to dilute the opium agenda and deflect
attention from Indian opium production. Britain also hoped that a fair treaty
would create a level playing field for British pharmaceutical companies to
compete with the dominant German synthetic drug industry.[3][18]

Chapters I
and II of the 1912 International Opium
Convention[4][19] (1912 Hague Convention) dealt with
raw and prepared opium. For example, Article 1 required parties to “enact
effective laws or regulations for the control of the production and
distribution of raw opium” unless such laws were already in place. The
Convention also recognized the U.S.-initiated principle of restricting opium
use to medical and scientific purposes. Chapter IV was aimed at reducing drug
trafficking in China.

Chapter III
focused on licensing, manufacturing and distribution controls on synthetic
drugs, but Germany ensured that the provisions were weak and vague. Article 10
allowed countries to simply make their “best
endeavours” to implement these controls. Furthermore, Germany refused to
sign the treaty until it was agreed that all countries would have to ratify[5][20] the Convention before it came into
force. This was an effective tactic for delaying control measures as it took
almost a decade for all countries to ratify the agreement. Germany did so only
because ratification was a condition of the Treaty of Versailles that ended the
First World War in 1919.[6][21]

Wright used
the 1912 Hague Convention in his campaign for U.S. domestic legislation,
arguing that a federal law was necessary for the U.S. to fulfil its obligations
under the Convention. In 1916, the U.S. Supreme Court ruled that this was not
so, but by then the Harrison Narcotics
Act of 1914 had become the first federal drug control law in the U.S.; it
would remain a pillar of U.S. drug policy for the next few decades.[7][22]

The
establishment of the League of Nations in 1919 following the First World War
provided the international community with a centralized body for the
administration of drug control. In 1920, the League created the Advisory
Committee on the Traffic in Opium and other Dangerous Drugs, commonly known as
the Opium Advisory Committee (OAC), the precursor to the United Nations (UN)
Commission on Narcotic Drugs. The League Health Committee, forerunner of the UN
World Health Organization, was also formed. Administration of the 1912 Hague
Convention had originally been the responsibility of the Netherlands, but was
transferred to the Opium Control Board (OCB) created by the OAC. Enforcement of
the Convention was sporadic as the countries on the OCB were the ones profiting
most from the drug trade.[8][23]

The League
began to consider demand-side socio-medical issues such as why individuals use
drugs, what constitutes drug abuse, and what social factors affect abuse.
However, prohibition and supply-side issues soon regained the ascendancy as
preparations began and talks were held, again at the instance of the U.S., for
a new treaty in the mid-1920s. In general, the international regime has tended
to separate the study of drug-related medical and social problems, including
etiological questions, from that of drug control problems.[9][24]

[1][16]William B. McAllister, (1992) “Conflicts of Interest in the
International Drug Control System,” in William O. Walker III, ed., Drug Control Policy: Essays in Historical
and Comparative Perspective, University Park, Pennsylvania: Pennsylvania
State University Press, page 145.

[5][20]Ratification is the process by which each country enacts national
implementing legislation – unless the new international obligations are already
met by domestic legislation – and thereby consents to the treaty’s application
within its territory.

[7][22] Musto (1999), page
59-63. Since the U.S. Constitution did not allow a direct federal role in
criminalizing drug use, Wright designed the Harrison
Act as a tax statute; physicians, pharmacists, wholesalers and retailers
had to obtain a tax stamp to distribute drugs. The Treasury Department was
responsible for enforcing the statute. Thus, the use of drugs was limited
through access restrictions. (McAllister (2000), page 35)